New York’s Shield Law Protects Reporter From Subpoena

September 3, 2014

It came in a strange context, but New York’s “shield law” seems to have done its job recently, helping a reporter protect his sources and work products after he was subpoenaed to testify in an Oklahoma divorce case.

New York’s shield law protects journalists from contempt-of-court prosecutions when they refuse to testify about information gathered during their reporting, at least in some circumstances. It’s designed primarily to protect confidential sources, even when revealing those sources might help the government prosecute a crime or, in this case, help a couple work out the terms of their parting.

The case began when plaintiff Sue Ann Hamm sought notes and interview recordings from Wall Street Journal reporter Gregory Zuckerman. Zuckerman had interviewed Hamm’s husband, Harold, about a book he was writing on the fracking business. Sue Ann believed those interviews had touched on the couple’s finances, relevant for the division of assets, so her lawyers issued a subpoena for a wide range of Zuckerman’s materials, thinking that some of the discussions might shed light on Harold’s credibility.

The ruling comes at an interesting time, as another New York journalist protecting his sources, James Risen, is shortly expected to either testify in a federal prosecution or head off to the clink for criminal contempt of court. Since 2008, Risen and his employer, The New York Times, have been battling a subpoena stemming from the prosecution of former CIA agent Jeffrey Sterling. Sterling is accused of leaking secrets to Risen for a book he wrote about CIA activities, and the former agent is being prosecuted for the release of classified materials.

Risen’s reporting exposed an embarrassing and potentially counterproductive misstep by the CIA, which had tried, unsuccessfully, to give deliberately faulty plans for a nuclear weapon to Iranian spies. The flaws in the plan were designed to slow the country’s progress toward a weapon, but were almost immediately recognized by the Iranians as an attempt at sabotage.

The subpoena for Risen to testify about the leaker’s identity was initially issued under the Bush administration, but the case was continued under President Obama. The administration’s pursuit of Risen has been heavily criticized for what many see as an overzealous and, more to the point, unnecessary impingement on press freedom, since no one is really in doubt about who leaked the classified information in question. But the administration insists on having Risen testify, and thereby surrender one of the most important tools of an investigative reporter’s trade, the (credible) promise of confidentiality.

Risen fought the subpoena all the way to the U.S. Supreme Court, where the justices declined to review a lower court’s ruling affirming the subpoena’s legality. Having exhausted his options, Risen’s day of judgment may be coming soon, forcing him either to be jailed for his convictions or to tell the government what it wants to hear.

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Risen wold be on much firmer legal ground if, like Zuckerman, he had New York’s shield law protecting him and his sources. But since his is a federal case, Risen is on his own.

There’s been talk of passing a federal equivalent of the kind of shield law New York and most other states already have, pushed by groups like the Society of Professional Journalists, but it remains a controversial idea.

When a shield law came before the U.S. Senate in 2013, there was a lot of debate centering around the law’s proposed definitions, which raise some sticky issues. Who exactly is a journalist, anyway? Do part-time, unpaid bloggers deserve the same protection as full-time journalists? If not, why? Non-pros break news all the time, and some ostensible pros spend their days making listicles. And if all those non-pros do deserve protection, what’s to stop everyone with a Twitter account from claiming “reporter’s privilege”?

As people are fond of saying in the social-media age, we’re all journalists now, and a shield law that encompassed every blogger and Twitterer and Facebooker would make it nearly impossible for the courts to force anyone to testify. It would be chaos, critics say, mass hysteria. Human sacrifice, dogs and cats, living together.

And maybe more importantly, do we really want the government determining who’s a journalist in the first place? It would be nice if prosecutors would, ya know, back off, but maybe the mechanics of enshrining that protection in law is just too fraught.

And of course, not everyone thinks Risen — or any other journalist — deserves special protection.

The ruling in the Zuckerman matter, decided in a state court, won’t have any influence on Risen’s federal case. But it raises all the same questions, albeit in a scenario with significantly lower stakes. Maybe most persuasively, the judge determined that there were alternative ways for the plaintiff to get the goods from other witnesses, so there was no need to jeopardize a journalist’s reputation and career to obtain information that could be gotten in other ways. The same might be said in Risen’s situation.

The full decision, available on the next page, offers some excellent pondering opportunities, so read on.